Changing Codes and Changing Constitutions

L’auteur s’intéresse à une question peu étudiée, soit celle des modifcations apportées à un code civil. La façon dont le Code civil du Québec est actuellement modifé soulève des inquiétudes tant au regard de motifs théoriques qu’en raison de la spécifcité de ce qu’est un code. Aussi, l’auteur attire l’attention sur l’abondante littérature qui traite de la réforme du droit au Canada et propose la création d’un institut qui serait chargé de surveiller le processus de modifcation du Code. De plus, il souligne l’importance pour les juges, le Parlement du Canada et l’Assemblée nationale de respecter la fnalité qui sous-tend le partage des pouvoirs établi par la constitution. Pour illustrer ses propos, l’auteur prend en considération la Loi d’harmonisation no 1 du droit fédéralavec le droit civil, de même que les récentes décisions judiciaires et lois qui ont porté sur le mariage et l’union civile.In this article, the author addresses a neglected area of study, namely codal amendment in Canada. The author argues that the theoretical justi-fcations for the Civil Code of Québec and its distinctive design features raise concerns about how the Code is currently amended. In response to these concerns, the author draws on the rich literature concerning law reform in Canada to propose a reform institute that is charged with overseeing the process of codal amendment. Moreover, the author contends that when Canadian courts and Parliament respond to and the Quebec legislature effects changes to codal text they should be closely attentive to the purposes underlying the constitutional division of powers. To illustrate this last contention, the author critiques the Federal Law — Civil Law Harmonization Act, No. 1 and recent legislative and judicial developments respecting marriage and the civil union

Something to Talk About: Regulation and Justification in Canadian Municipal Law

Although municipal law is a subset of administrative law, it has not received the same degree of theoretical attention. This article aims to contribute to the theoretical literature on municipal law in Canada by offering a civic republican account of regulation making in municipalities. This article\u27s primary contribution ties in the theoretical claim it advances: that civic republicanism (1) explains Canadian municipal law and (2) provides a standpoint for evaluating existing law and policy. The article\u27s arguments about civic republicanism in the local government context offer a detailed account of an area of law that others have suggested is a natural locus for civic republican arguments. In the course of advancing its claims, the article will stake out positions in contemporary debates about municipal law and offer some prescriptions that aim to make municipal regulation more consonant with civic republican ideals

Reference Re Genetic Non-Discrimination Act: How to Make Space for Some Certainty

In the Reference re Genetic Non-Discrimination Act (Reference) the Supreme Court of Canada divided three ways, reproducing the divisions from the Reference re Assisted Human Reproduction Act (AHRA), decided a decade earlier. AHRA did not provide a majority statement of the rule for determining what constitutes a valid exercise of the section 91(27) criminal law power. Neither did the Reference. As a consequence, uncertainty in this area of the law persists. This article suggests arguments that, if adopted, would resolve this uncertainty. Part I summarizes the Reference, including the three sets of reasons written by Karakatsanis J., Moldaver J. and Kasirer J., respectively. Part II is organized around three spatial metaphors: the relationship of parts to the whole, breadth, and line-drawing. Part II begins by addressing an apparent disagreement in the federalism jurisprudence and in the Reference about the proper order for pith and substance analyses, when a part of an act is at issue. I argue that in some cases it is necessary to interpret an act as a whole before assessing its parts. Part II then turns to disagreements in the Court about the breadth of the criminal law power. I argue that Karakatsanis J.’s expansive interpretation places in jeopardy federalism principles and that Kasirer J.’s criticisms of that interpretation were justified. Part II concludes by examining a disagreement between Kasirer and Karakatsanis JJ. about whether the test for validity under the criminal law power should include a line-drawing exercise. I argue that this relatively narrow disagreement reveals a deeper debate about the appropriate role of courts in adjudicating disputes about the criminal law power. I conclude that Kasirer J.’s position flows from an understanding of the judicial role that is consistent with the broader federalism jurisprudence

Comeau and Constitutional Interpretation

R. v. Comeau raises questions about the place of originalism in the interpretation of a federalism provision of the Constitution Act, 1867, as well as related issues about the doctrine of stare decisis. Indeed, in anticipation of the Supreme Court’s hearing of the case, Léonid Sirota and Benjamin Oliphant wrote in the postscript to their 2017 article entitled “Originalist Reasoning in Canadian Constitutional Jurisprudence”: “[t]he Supreme Court’s decision … may well provide welcome clarifications as to [the] value and importance of originalist reasoning in Canada”. They argued that the case posed a question that represented “‘the biggest single challenge facing originalists’ — whether and how to ‘reconcil[e] originalism with precedent’” that deviates from the original meaning of a constitutional provision. When understood in these terms, Comeau engaged a broad academic debate about the relationship between living tree constitutionalism and originalism that is ongoing in Canada, the United States and elsewhere

Patchwork Law Reform: Your Idea Is Good in Practice, but It Won\u27t Work in Theory

This article elaborates a conception of law reform that is pluralistic, interactional, non-formulaic, attentive to implicit normativity and not exclusively instrumental. It argues that law reform practice is always informed by theory. Where theory is inadequate, law reform practice is likely to result in a sub-optimal patchwork. An appropriate theory of law reform will have the following attributes. First, it will have a respect for human agency. This respect is made manifest in law reform on dimensions of form, substance, purpose, authority, mode, regime, sites, and system. Second, an adequate practice of law reform must attend to structural features of legal institutions, and in particular the systematic and symbolic character of explicit reform to legislative texts. It must also account for the dimensions of interaction between different normative institutions, and various types of implicit law reform activity that does not appear in changes to legislative texts. Finally, it must be grounded in a sensitivity to socio-cultural context. It is argued in conclusion that an adequate theory and practice of law reform will be less reform than re-substance, and a transformation in ideas of law will engender a transubstantiation of its practice

Patchwork Law Reform: Your Idea Is Good in Practice, but It Won\u27t Work in Theory

This article elaborates a conception of law reform that is pluralistic, interactional, non-formulaic, attentive to implicit normativity and not exclusively instrumental. It argues that law reform practice is always informed by theory. Where theory is inadequate, law reform practice is likely to result in a sub-optimal patchwork. An appropriate theory of law reform will have the following attributes. First, it will have a respect for human agency. This respect is made manifest in law reform on dimensions of form, substance, purpose, authority, mode, regime, sites, and system. Second, an adequate practice of law reform must attend to structural features of legal institutions, and in particular the systematic and symbolic character of explicit reform to legislative texts. It must also account for the dimensions of interaction between different normative institutions, and various types of implicit law reform activity that does not appear in changes to legislative texts. Finally, it must be grounded in a sensitivity to socio-cultural context. It is argued in conclusion that an adequate theory and practice of law reform will be less reform than re-substance, and a transformation in ideas of law will engender a transubstantiation of its practice

Deliberative or Performative? Constitutional Reform and the Politics of Public Engagement in New Zealand

A key assumption that shapes debates over deliberative constitutionalism is the idea that ‘deliberation’ versus the wielding political power based upon partisan influence somehow represent different poles of the constitutional-deliberative coin. This dualism is problematic. While the term ‘deliberation’ means careful consideration and purposeful and dispassionate decision-making, its adjectival form ‘deliberate’ may also imply ‘calculated’, ‘premeditated’ and ‘controlled’. How democracies deliberate is arguably an empirical and political question rather than a theoretical or normative one. This paper sets out to explore these themes in the context of New Zealand, a country that has had three major constitutional deliberations since 2005. Framed by government as ‘national conversations’ on ‘the future of New Zealand’, these include two initiatives aimed at engaging the public’s views on constitutional reform and a recent consultation over proposals to change the national flag. What is striking about these popular constitutional initiatives, however, is the lack of public engagement or serious government interest. We argue that these ‘non-event’ deliberations highlight one of the key challenges for deliberative constitutionalism: how to prevent instrumentalism and performativity from overshadowing the substantive. In developing our argument we draw on anthropological fieldwork on the role of the Crown in New Zealand and the Commonwealth. As we aim to show, the New Zealand case study highlights yet another problem for deliberative constitutionalism in practice: the difficulties of creating a meaningful public consultation when the main terms of reference (‘Crown’ and ‘Constitution’) are so ambiguous, amorphous and poorly understood